Looking at the inquests in the Gosport scandal, several legal issues arose then, which still appear in inquests in the health and social care sector held throughout the country, says Errol Archer
The findings of the Gosport Independent Panel Report published on 20 June 2018 made for shocking and saddening reading and one’s thoughts were immediately drawn to the feelings of the families and friends of those who died.
And it is the feelings, views and wishes of family members of those who have died that weigh heavily on the minds of coroners who conduct the 30,000 plus inquests every year.
As a health and social care lawyer who represents clients at inquest, I was particularly interested to read chapter eight of the report which was critical of the delay of over two years between the Crown Prosecution Service decision not to prosecute in December 2006 and the first day of the inquest hearings on 18 March 2009.
Apart from the significant resourcing challenges that faced the coroner and deputy coroner, the preparation for and the conduct of the 10 inquests (out of the 91 deaths that the police had investigated at the time) raised a number of difficult legal and practical issues for the coroners and those involved in the inquests, from the trust’s solicitors to lawyers representing the families.
Chapter 8: The Inquests
If one were looking for a practical case study for a training session on some of the central legal issues in inquests in the health and social care sector, one need look no further than these inquests. Although they were held nearly a decade ago, the wealth of issues that arose then, still feature regularly in inquests up and down the country today, including:
- questions around the proper role and purpose of coroner’s courts in public life in contrast with that, for example, of a statutory public inquiry when matters of significant and widespread public interest are being looked at;
- the proper scope of an inquest, being very limited; in the Gosport inquests the coroner and deputy coroner themselves questioned whether a coroner’s hearing was the best forum to consider and make findings on the broad ranging questions that many family members wanted answered;
- the limited availability of public funding for legal representation for family members at inquests;
- whether any particular inquest should be treated as an “Article 2” inquest, extending the scope of the enquiry to ascertaining ‘in what circumstances the deceased came by his or her death’. Article 2 inquests are held where the death occurred in state detention; not being limited to police custody or prison but extending also to those in other state detention eg those detained under the mental health or, for deaths that occurred prior to 3 April 2017, those who are mentally incapacitated, under the Deprivation of Liberty Safeguards, and being treated in hospital or cared for in a nursing home;
- whether the hearing should be before a jury or before the coroner alone;
- whether expert evidence is needed and if so, who should provide this and how;
- whether future deaths might be prevented by the coroner issuing a Report to Prevent Future Deaths (formerly known as Rule 43 reports), now issued under Regulations 28 and 29 Coroners (Investigation) Regulations 2013; and
- how best to effectively manage the limited resources of the coroner’s court, especially with a view to avoiding unnecessary delay.
These are some of the many legal and practical issues considered week in and week out at coroners’ courts throughout the country but ultimately, for the families of loved ones who have died, in large numbers, arguably the most important question is which forum will most fully and effectively answer the broad ranging questions that the deaths raise. Not only for themselves but to prevent further similar deaths. And it is evident from the Gosport Report that the decision should be taken early in the process.
Matters have moved on in the health and social care sector in many significant ways over the last 10 years; in particular with the introduction of the Duty of Candour and the now well established process of Care Quality Commission inspections. Likewise, inquest practice and procedure has moved on. That said, there remain many lessons that can be learned by reflecting on past events with a view to continual improvement.